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Whistleblower Law Blog

MSPB: New Whistleblower Standard Applies to Pending Cases

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The U.S. Merit Systems Protection Board (MSPB) ruled that a key provision of the Whistleblower Protection Enhancement Act (WPEA) should apply retroactively to any federal whistleblower case that was pending on the effective date of the statute: December 27, 2012.

The decision in Day v. Department of Homeland Security—which the MSPB said would affect a “substantial number” of cases—concerned Section 101 of the WPEA, which offers protection to federal employees who face retaliation for disclosing government wrongdoing under certain circumstances.

In particular, Section 101 explicitly protects whistleblowers who uncover government misconduct during the normal course of their jobs; who report misconduct to a supervisor responsible for the misconduct; and who are not the first to report such misconduct.

In all of these scenarios, the previous law was unclear on whether whistleblowers were protected—and a key federal court had ruled that they were not.

As a result of the MSPB’s Day decision, many federal whistleblower cases now may be reinstated after a prior dismissal, or won’t be dismissed in the first place. Retroactivity of WPEA still could be overruled, however, when courts review the MSPB’s decision.

Like the Whistleblower Protection Act (WPA) that it modified, the WPEA applies to employees of the U.S. federal government who report wrongdoing or gross mismanagement in their workplace. The law forbids retaliation against such employees, and provides a judicial structure for enforcing this ban.

A three-person panel of the MSPB relied on three main arguments to justify its 2-1 decision to apply WPEA retroactively:

  • Although the statute doesn’t say so, Congress intended the WPEA to apply to pending cases.
  • Even without an explicit provision for retroactivity, it’s OK to apply a new law to pending cases if the relevant part of the law provides only clarification, not substantive change (the “clarification doctrine”).
  • Applying Section 101 to pending MSPB cases shouldn’t surprise anyone unfairly in a pending case, since 101 hews closely to the MSPB’s recent readings of the old law—the application of a 101 standard was foreseeable.

The last two arguments may prompt a faceoff between the MSPB and the U.S. Court of Appeals for the Federal Circuit—which, until the WPEA became law, was the only federal appeals court empowered to review whistleblower cases decided by the MSPB.

The Fed Circuit does not follow the clarification doctrine, and Section 101 of the WPEA is a direct rebuke to that court’s interpretation of the old WPA in Huffman v. Office of Personnel Management, a 2001 decision that the MSPB criticized as “constricted.”

Indeed, the MSPB has spent much of the past two years chipping away at Huffman and, in Day, boldly cited a litany of cases in which it had “scrutinized and rejected” the “rigid application” of Fed Circuit precedent.

In its conclusion to Day the MSPB all but challenged the Fed Circuit to a throwdown, pointing at a fresh Supreme Court opinion, City of Arlington v. FCC, to predict that it would prevail.

The dissenting board member, Mark Robbins, was more conservative: Regardless of any other factor, he said, the MSPB is bound by the Fed Circuit’s rejection of the clarification doctrine—and therefore can’t use the doctrine to apply WPEA retroactively.

The MSPB’s decision in Day applies only to Section 101 of the WPEA, but may provide a template for the retroactive application of other provisions—including, perhaps, the new law’s treatment of compensatory damages for whistleblowers.

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